Newman and Newman
[2010] FamCAFC 226
•25 October 2010
FAMILY COURT OF AUSTRALIA
| NEWMAN & NEWMAN | [2010] FamCAFC 226 |
| FAMILY LAW - APPEAL – CHILDREN - Appeal against parenting order permitting mother to determine choice of children’s schools - Each party proposed particular school - Case conducted on that basis - Order made by Federal Magistrate not sought by either party - Conceded that Federal Magistrate could have made order sought by either party on evidence before him - Parties not offered opportunity to make submissions in relation to order ultimately made. Court satisfied that father denied natural justice – Not established that no different outcome would have resulted had natural justice been afforded parties – Appeal allowed - Court able to, and invited to re-exercise Federal Magistrate’s discretion – Federal Magistrate’s orders varied – Costs certificates granted. |
| Family Law Act 1975 (Cth) Part VII |
| Stead and State Government Insurance Commission (1986) 67 ALR 21 Allesch v Maunz (2000) 203 CLR 172 |
| APPELLANT: | MR NEWMAN |
| RESPONDENT: | MS NEWMAN |
| FILE NUMBER: | PAC | 2765 | of | 2009 |
| APPEAL NUMBER: | EA | 59 | of | 2010 |
| DATE DELIVERED: | 25 October 2010 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 25 October 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 16 April 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 313 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Wong |
| SOLICITOR FOR THE APPELLANT: | Marsdens Law Group |
| COUNSEL FOR THE RESPONDENT: | Ms De Vere |
| SOLICITOR FOR THE RESPONDENT: | Smythe Wozniak |
Orders
That the appeal is allowed.
That Order 3 of 16 April 2010 is set aside.
That the children shall be enrolled at and attend M Public School.
That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Newman & Newman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EAA 59 of 2010
File Number: PAC 2765 of 2009
| MR NEWMAN |
Appellant
And
| MS NEWMAN |
Respondent
REASONS FOR JUDGMENT
This is an appeal against parenting orders which falls within a very narrow compass. On 16 April 2010, Dunkley FM made parenting orders in relation to the two children of the marriage of Ms Newman (“the mother”) and Mr Newman (“the father”). Those two children were A, born in October 2006 and N, born in April 2008. The orders made by the learned Federal Magistrate related to parental responsibility and the time which each of the children would spend with each of their parents. The orders were very detailed in the latter respect.
The orders of the learned Federal Magistrate included order 3 which gives rise to the father’s appeal to this Court. Order 3 provided that the children shall be enrolled at and attend the school, as agreed by the parties and failing agreement, as selected by the mother. From that order, the father appealed and sought as his primary position, that the question of the children’s future schooling be remitted to the Federal Magistrates Court for redetermination by a Federal Magistrate other than Dunkley FM.
The mother resisted the father’s appeal and sought to maintain the learned Federal Magistrate’s order with respect to the children’s schooling. Through her learned counsel, during the course of the hearing of the appeal, the mother’s alternate position was clarified as being that if the appeal were allowed, this Court re-exercise the discretion of the learned Federal Magistrate to make an order that the children attend the school suggested by the mother, which was M Public School, rather than the school asserted by the father, which was P Catholic School at C.
The orders made by the learned Federal Magistrate were to, a large measure, in other respects substantially consensual.
His Honour recorded, at the commencement of his reasons for judgment, the matters which were agreed. Importantly, they included equal shared parental responsibility, equal time spent with both of the children’s parents, and a variety of orders in relation to Easter, school holidays, Christmas and birthdays. His Honour recorded, accurately there is no doubt, that what was in dispute were two things. The specific details for the arrangements by which the children would spend equal time with each of their parents, and the school that the children should attend when they attained school age.
The orders made by the learned Federal Magistrate, with respect to the former aspect of the proceedings have not been the subject of challenge in this Court. The only order made by the learned Federal Magistrate, which has excited appellate challenge, has been the order with respect to schooling. As the transcript of the hearing of the appeal to this Court would confirm, the issue in this Court falls within an even narrower compass.
Learned counsel for the father conceded that, on the material before him, it was reasonably open to the learned Federal Magistrate to have concluded that the order sought by either parent with respect to the children’s schooling could have been made. That is to say, it was conceded and with respect, sensibly and accurately so, that the state of the evidence before the learned Federal Magistrate was such that his Honour could have preferred the schooling proposal of either parent, without thereby erring in the exercise of his discretion.
The issue for determination in the appeal is whether by going somewhat further as his Honour did, and ordering that the mother have the general power of determining the children’s schooling, his Honour erred. Six grounds of appeal attacked order 3 from a series of slightly different perspectives. Permeating the challenges were, effectively, two things. The first was that the learned Federal Magistrate had denied the father natural justice by making order 3 without either party having sought an order in those terms, in the absence of any indication that such an order was likely to be made, or within contemplation of the learned Federal Magistrate. It was sensibly conceded that, if the learned Federal Magistrate had raised with counsel for the father, the prospect of such an order being made the requirements of natural justice would have been satisfied. In the complete absence of any such indication, his Honour was submitted to have denied the father natural justice and thereby erred.
The second broad theme, which permeates the grounds of the first six grounds of appeal, was not entirely unrelated and was, in essence, that the learned Federal Magistrate’s reasons for judgment did not adequately explain why he had made order 3.
Counsel for both parties filed very extensive written submissions. To the extent that these reasons for judgment do not engage specifically with those submissions, it ought not be thought that the Court has not had regard to them, or that those submissions were not helpful. Indeed, the submissions of counsel for the parties have been very helpful to the Court in distilling what it emerges from oral debate with counsel are undoubtedly the real issues in the appeal. The crux of the challenge, in relation to natural justice, is that at no time, prior to his Honour delivering judgment and making the orders he did, did the father know or have reason to believe that he was at risk of an order in those terms.
Perusal of the transcript of the trial confirms that the major live issue before his Honour was the children’s schooling. Counsel then appearing for the father, in opening the case before the learned Federal Magistrate, explained that the issue with respect to schooling was whether the children go to M Public School, as proposed by the mother, or P Catholic School at C, as proposed by the father. At no time thereafter, save in one respect to which reference will shortly be made, was the question of schooling in any broader sense raised, either in cross-examination of the mother or the father, or in submissions.
The father’s case before the learned Federal Magistrate was, undoubtedly, that the children should attend P Catholic School at C. The case for the mother was that the issue of the choice of schooling should be deferred, given that it was not until the year 2012 that the elder of the two children would be likely to commence school. The mother was unrepresented at trial. It is not in doubt that the mother’s alternate or fallback position was that if, as transpired, his Honour did not consider deferring the issue to be in the children’s best interests, then an order for the children to attend M Public School would be.
Save to that extent, the only evidence before the Court related to the two schools to which reference has been made and the only proposals of each of the parties involved those schools. Put another way, the contest was between M Public School, as urged upon the Court by the mother or P Catholic School at C, as urged upon the Court by the father.
During the course of submissions being made by the mother, the learned Federal Magistrate said:
The difficulty that I am confronted with is that, if I don’t make an order for their schooling, you two won’t agree and, therefore, you’d be back here again and one of the subsections that relates to my having to decide about what’s in the best interests of the children, is that I, in coming to that - one of the factors I have to consider is that the orders that I make minimise, as much as possible, future litigation.
The mother who was advocating that his Honour make no decision responded:
That there are other schools that could be looked at which are maybe not half-way between, but there are other schools that the children could attend.
It should be made clear that the mother lived at M, the father lived at C and the evidence seems to have been largely uncontroversial, that it was about 45 minutes drive from M to C. Given that the parties agreed that the children would spend half their time with each in each household, the contest being between P, C and M, a considerable amount of travel was going to be involved, irrespective of which school was preferred. The only real difference was that one parent was going to be significantly more disadvantaged than was the other in terms of travel. That is particularly so, given the competing proposals of the parties which involved changeovers of the children occurring mid week. The proposals for equal shared time did not involve week about, with the changeovers occurring at weekends.
As the transcript makes clear, other than in the passage to which reference was just made, the learned Federal Magistrate did not raise again the schooling issue in terms of the alternatives, although it is clear that there were extensive submissions relating to the merits of the two schools which emerged as the contenders. The position is, accordingly, that when judgment was delivered, both parties were presented by order 3 with an outcome which neither actually sought although, no doubt, the mother would not have been displeased by that outcome.
At the risk of oversimplifying the cogent and comprehensive submissions of his learned counsel, the case for the father was, essentially, that his counsel at trial had no opportunity to make submissions about the broader proposition of the mother having the ability to choose the children’s school from time to time, in circumstances where the competing submissions had been, in the case of the mother, no decision at all or M Public School; in the case of the father, P Catholic School. As the oral submissions of learned counsel for the mother fairly and sensibly acknowledged, the contention of learned counsel for the father has considerable attraction.
With great respect to his Honour, and accepting that what he was clearly trying to do was obviate the prospect of future proceedings, his Honour went beyond the ambit of the dispute as defined by the parties and, regrettably, did not afford the father the opportunity to make submissions in opposition to a proposal which neither the parties nor his Honour had raised as a possible outcome. And, as learned counsel for the father frankly acknowledged, had he done so, there is little doubt that it would have been open to his Honour to have made order 3.
That raises the question of whether this challenge is entitled to succeed, having regard to decisions such as Stead and State Government Insurance Commission (1986) 67 ALR 21. That is to say, did the denial of natural justice result in an outcome which was inevitable in any event. As is not in doubt, if the result of the case could not have been any different, then whilst regrettable, the failure to observe the principles of natural justice would not enliven appellate intervention. With respect to his Honour, it cannot, in this case, be concluded that on the evidence before him, the only outcome reasonably likely was order 3. Accordingly, this challenge is entitled to succeed.
It is unnecessary to say much about the challenge in relation to reasons. Not surprisingly, where a party has not been invited to make submissions with respect to a possible outcome, the reasons for judgment are unlikely to engage in detail with that outcome, and that is the case here.
The learned Federal Magistrate addressed the issue of the school that the children should be enrolled in. His Honour acknowledged accurately that the issue was not without its difficulties. He further acknowledged that there was much to support the mother’s contention that a decision at that time was premature, but concluded as was open to him, there is no doubt, that to avoid potential further litigation, a decision was warranted. His Honour then recorded the mother’s proposal. There is no suggestion that he failed to do so accurately. His Honour has been criticised for not having considered the proposal of the father, with comparable attention to detail.
The Court does not believe that complaint to have substance, having regard to earlier passages in his Honour’s judgment. His Honour expressly said in paragraph 41 why he was not making a specific order with respect to M Public School. The reason was to accommodate changes in the parties’ circumstances, as a result of which the decision-making power was vested in the mother, potentially avoiding any prospect of any need for further litigation. To the extent that order 3 needed explanation in terms of the reasons for making it, those reasons were adequate. Having not invited submissions in opposition, the reasons do not address the basis of such opposition. Whether or not they were supportable by the evidence, is another question and one which does not arise and need not be considered.
The other grounds of appeal articulated in the amended Notice of Appeal and addressed in the written submissions of learned counsel for the father are not capable of advancing matters for present purposes. To the extent that findings of fact were there challenged, in some instances, those challenges fail. For example, the challenge raised by ground 9. Given other findings of fact by the learned Federal Magistrate, even if accepted, challenges to other findings of fact could not advance the present challenge.
Quite properly, a number of the further grounds were conceded to be incapable of enlivening appellate intervention. The concessions of learned counsel for the mother, with respect to the ambit of order 3, combined with the matters to which reference has been made and the concession by learned counsel for the father at the outset of the appeal, as to the essential challenge being to order 3, remove the need for any further discussion of the grounds of appeal. With respect to his Honour and recognising that his intention was commendable, in the absence of having afforded the parties the opportunity to address that possible outcome and given that other outcomes could have resulted, as counsel for both parties have acknowledged, the appeal is entitled to succeed. The question then becomes, what flows from that?
Initially, counsel for the father sought the matter be remitted for rehearing by another Federal Magistrate. The Court indicated that it struggled with the logic of such a course in circumstances where it was conceded by counsel for the appellant father that the learned Federal Magistrate, on the evidence before him, could have made orders with respect to either P Catholic School at C or M Public School. It, ultimately, became the position of the father that this Court could re-exercise the discretion of the learned Federal Magistrate.
Learned counsel for the mother did not suggest any impediment to this Court re-exercising his Honour’s discretion. Neither party sought leave to adduce further evidence before this Court in relation to the re-exercise of discretion pursuant to the High Court’s decision in Allesch v Maunz (2000) 203 CLR 172 and with respect, that was sensibly so. It is difficult to imagine what further evidence could have usefully informed the re-exercise of the discretion of the learned Federal Magistrate. Counsel for the father urged the Court to have rather more regard to the father’s proposal than did the learned Federal Magistrate; it being submitted that his Honour had failed to consider both sides of the case, and had unduly focused on the position of the mother.
His Honour’s findings of fact enable this Court to re-exercise his Honour’s discretion. No significant finding of fact has been the subject of challenge or successful challenge, in this Court. Perhaps before doing that, it is appropriate, in the light of a submission of counsel for the father in the appeal, to record that this Court does not understand that it is obliged to have regard to each and every provision of Part VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to this discrete issue, provided that the issue is considered under the umbrella of the best interests of the children.
The Court comes to re-exercise its discretion in the shadows of the unchallenged orders of the Federal Magistrate with respect to parental responsibility and time spent and, particularly, the times at which the children are to change residence pursuant to their equal time regime with each of their parents. The Court turns to the findings of fact which inform the exercise of the Court’s discretion. These all find expression in the judgment of the learned Federal Magistrate. These findings are either unchallenged or, to the extent that they may have been challenged, the challenges have not been made out.
The mother and the children, when they are in her care, live with the maternal grandmother at M in a home owned by the maternal grandmother. The mother conceded in evidence before the learned Federal Magistrate that she would not live with her mother forever, and that if the father succeeded in relation to schooling, she might consider moving closer to his home in H. The evidence did not reveal any timeframe within which the mother might not live with her mother at M, nor did the evidence reveal the prospect of the mother being financially able to live elsewhere.
Counsel advised that there had not been a settlement of property between the parties. The evidence before the learned Federal Magistrate, not surprisingly, provides no basis for beginning to suggest how property settlement proceedings yet to occur, might impact in terms of the mother not living at M, or the father not living at C.
The mother has part-time employment as a pharmacy dispensary technician, working three days a week. The mother’s evidence before the learned Federal Magistrate was that she has some flexibility in terms of her hours of employment. The mother gave evidence in relation to the 40 to 50 minute travel time between her home and P Catholic School and how similar times applied for the travel between M Public School and P Catholic Primary School. The children can walk to M Public School in about five minutes. Until separation, the parties and their children lived in the C area. The parties separated on 3 May, 2009. It appears that thereafter, the children had lived for significant times, with each of their parents at C when they were with their father, at M when they were with their mother.
The mother relied upon the involvement of her mother in the children’s lives and the ability of her mother to assist her with the children’s care. The mother had not undertaken any research as to the various methods of the school she proposed, as his Honour recorded. The father is the general manager of a private company controlled by himself and his business partner, which manages pharmacies. The father’s evidence was that his work was, primarily, undertaken from home and that he too can tailor his hours to accommodate the children’s needs when they are with him.
The father gave evidence of extra curricular activities in which the children have attended, which he had facilitated. The father lives in a home owned by a trust. The trust is controlled by the father’s business partner. In evidence, the father conceded that the trustee could sell the home in the future. The father denied that he had any financial instability and there is no evidence before his Honour that financial issues had materially impacted upon the question of the children’s schooling.
The father’s proposal was that the children should attend P Catholic Primary School. The Court does not understand there to have been evidence before the learned Federal Magistrate that either or both of the parties was, were or had been, practising Catholics and no submission made to this Court by learned counsel representing the father, asserted that facilitating the children’s progress in the Catholic faith was part of the father’s motivation for seeking that the children be enrolled at P Catholic School.
The evidence before the learned Federal Magistrate, by reference to something called NAPLAN, was that the facilities at P were superior to those at M and that the students at P had done better at the NAPLAN tests than the children at M. Whatever the NAPLAN tests were or are, the material tendered from something called the My School website confirmed to the learned Federal Magistrate’s satisfaction the father’s contentions.
The father’s case was that if he required assistance, his sister lived in a nearby suburb. The finding of the learned Federal Magistrate was, and correctly so having regard to the evidence that the father’s sister was on maternity leave and was able to assist while she was on leave, but that there was no evidence as to when the leave would end or any other evidence as to her availability once her leave ended.
The learned Federal Magistrate was criticised in relation to his finding at paragraph 40, that the maternal aunt may, by 2012, be back in the workplace and be unable to provide the assistance that the father hoped she could. The evidence before his Honour was that the aunt was on maternity leave. The absence of anything to the contrary implies that there will or may be a return to work. His Honour’s finding was, of course, “may,” rather “would.” To support the contention of counsel for the father, the evidence would need to have been that the aunt had ceased work. Maternity leave implies the prospect of a return to work.
It is clear, from the evidence of the parties with respect to them, that the major motivation for their respective positions, and not surprisingly so, was personal convenience. As noted earlier, whoever is unsuccessful in relation to this issue is likely to be more inconvenienced than is the party who is successful. The learned Federal Magistrate correctly identified that the decision in relation to schooling could, in some ways, being seen as premature and that the issue was not simple or straightforward. As his Honour recorded, the mother’s proposal that the children attend M Public School, while she continues to live with her mother, was more attractive having regard to the children’s best interests.
Why that was so was then briefly explained. As is obvious, it was close to her home and her workplace. It would enable the mother or her mother to collect the children in cases of emergency. On such evidence as there was before his Honour, he concluded that the children have a closer relationship with their maternal grandmother than they do with their paternal aunt. The paternal aunt, as noted earlier, may return to the workplace and may be unable to assist the father. The observation of the learned Federal Magistrate that the NAPLAN results of the proposed schools were not so different as to justify one school being chosen over and above the other resonates with this Court.
So does his Honour’s observation, that there was no certainty that either parent will continue to be living where they currently reside. Why that is so has been hinted at earlier. The evidence, particularly in the absence of there having been a property settlement, suggests, quite apart from the concessions made by the mother in relation to living with her mother forever, that there is considerable scope for either or both parents moving from their current places of residence. On balance, and accepting that the evidence before the learned Federal Magistrate and before this Court, provides a sufficient basis for concluding that the best interests of the children would be served by attending either school and that neither school is likely to prove adverse to their education and advancement in life, the Court is persuaded, on balance, that the best interests of the children would be served by making an order that they attend M Public School. The factors most significant, in that regard, are those to which the learned Federal Magistrate referred in his judgment, paragraph 40, which this Court has reiterated.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 25 October 2010.
Associate:
Date: 10 November 2010
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